Testimonium De Auditu Dan Keterangan Ahli Dalam Pembuktian Tindak Pidana Pencabulan Terhadap Anak Yang Dilakukan Warga Asing (Analisis Putusan Pengadilan Negeri Padang Nomor 236/Pid.Sus/2022/PN Pdg Dan Putusan Kasasi Mahkamah Agung Nomor 37 K/Pid.Sus/2023)

Abstract

The criminal offense of sexual abuse against children in Indonesian criminal law is regulated under the Criminal Code (KUHP) as well as various special statutes outside the KUHP that govern child protection and sexual violence offenses. These regulations apply to any person who commits a criminal offense within the jurisdiction of Indonesia, including perpetrators who are foreign nationals, based on the territorial principle in criminal law. The proof of criminal cases in Indonesia is grounded in the system of negative statutory proof as regulated under the Criminal Procedure Code (KUHAP), whereby valid forms of evidence include witness testimony, expert testimony, documentary evidence, circumstantial evidence, and the statement of the defendant. In cases of sexual abuse against children committed in private settings, the limited availability of direct witnesses and physical evidence renders testimonium de auditu and expert testimony important forms of evidence in the evidentiary process. The legal standing and probative value of these forms of evidence are assessed in accordance with criminal procedural law and evolving judicial practice. The application of these principles is analyzed through the Decision of the Padang District Court Number 236/Pid.Sus/2022/PN Pdg and the Cassation Decision of the Supreme Court Number 37 K/Pid.Sus/2023, which demonstrate differing judicial considerations between the court of first instance and the Supreme Court in assessing testimonium de auditu and expert testimony, resulting in divergent rulings against the defendant.